Friday, February 12, 2016

The Actual Drone CI Provision

The information that I received yesterday for last night’s post about drones and critical infrastructure facilities was not as complete as it could have been and as a result I made a small leap to the wrong amendments. While the two amendments that I reported on were submitted for consideration, they were not taken up by the Committee. Instead, Chairman Schuster’s (R,PA) Manager’s Amendment does contain similar language and was adopted by the Committee.

The Schuster amendment still adds a new 49 USC 45509 that adds the requirement I described yesterday for new regulations from the FAA. There is no requirement for covered facilities to register in order to have the regulations apply like we saw in Babin #81.

The very real difference between the adopted Shuster language and the two Babin amendments that I described last night can be found in the definition of critical infrastructure. The Schuster amendment’s definition {§45509(c)} only includes CFATS facilities and MTSA facilities. It does not include water treatment plants, waste water treatment facilities, DOD/DOE owned facilities or NRC regulated facilities.

Moving Forward

HR 4441 was approved in Committee yesterday on a near party line vote. In fact, there were two Republicans that voted against the bill. This means that the bill probably would not pass if it was brought to the floor under suspension of the rules which requires a 2/3rds vote to pass. This means that it would require a rule which would leave open the possibility of further amendments on the floor.

The unanimous Democratic opposition to the bill means that this version of the bill would almost certainly not get considered in the Senate. We are likely, therefore, to see another version of the bill with more bipartisan support introduced and voted upon in the Senate. The House could then either accept the Senate language or demand that a conference committee work out the differences in the two bills. In the 114th Congress there has been a pretty even split between the two options.

There was no recorded vote on the Schuster amendment (not unusual) so it is hard to tell whether there is any substantial opposition to this provision which was a relatively minor part of that amendment. I suspect that there was significant opposition to the Babin amendments and that the Schuster language was offered as an acceptable substitute. This might mean that the Schuster language could end up in any conference reported bill.


My comments from last night still stand except that the even further limiting of the drone regulations to just CFATS and MTSA covered facilities is even more inexplicable than was the lack of coverage in the Babin amendments for the electric grid and gas distribution lines. The only thing that I can figure is that including the water facilities would have required involving the EPA oversight committees and that was fraught with problems. There has been a general disinterest in Congress in requiring any real security of water treatment facilities. This is probably due to the fact that most of the facilities are owned by local governments that generally have little interest in spending money on real security measures.

DOT/DOE and NRC regulated facilities are already typically listed as flight restricted zones so that technically flying drones over them is already illegal. Raising the issue in this forum would just add ways for the bill to acquire more opposition.

It will be interesting to see if the industrial backers of this language can convince the Senate Commerce, Transportation and Infrastructure Committee to include it in their version of this bill.

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